Opposition — Goins v. United States

promt Court, Ute”

‘EELED

JUN 14 1979

No. 78-1609

Iu the Suyprenw Court of the Uuited States

OCTOBER TERM, 1978

BENJAMIN L. GOINS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

SIDNEY M. GLAZER

KATHLEEN A. FELTON |

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

ns emesimnannniananvbananssenes 1

I sco csbssicsendcadsectsineanees speenaienisiiceidaciaasie 2

Question presented ........ ASSIS NG RUT ee aE 2

Statement —....... Baan msuialas 2

Teen iaiirtdeaasoenedeclweese 5

ee a dad spmumcussenmene 14

CITATIONS

Cases:

Anderson vy. United States, 417 U.S. 211.. 5-6

California v. Green, 899 U.S. 149 0. 11

Chambers v. Mississippi, 410 U.S. 284... 11

Dutton v. Evans, 400 U.S. 74 ooo cece. 11,12

Green v. Georgia, No. 78-5944 (May 29,

Edie Aa si oe 13

Kirby v. United States, 174 U.S. 47 —...... 11

Mattox v. United States, 156 U.S. 237.... 11

Pointer v. Texas, 380 U.S. 400.0000... 11

United States v. Alvarez, 584 F.2d 694... 8, 10

United States v. Bagley, 5387 F.2d 162,

cert. denied, 429 U.S. 1075 00000...

United States v. Bailey, 581 F.2d 341...... 9

United States v. Barrett, 5389 F.2d 244...

United States v. Baxter, 492 F.2d 150,

cert. denied, 416 U.S. 940 20000000 oo... 12

United States v. Brandenfels, 522 F.2d

1259, cert. denied, 423 U.S. 1083 ......... 10,11

United States v. Gonzalez, 559 F.2d 1271.. 9

United States v. Haldeman, 559 F.2d-31,

cert. denied, 481 U.S. 983 0000000000000... 7

United States vy. Hoyos, 573 F.2d 1111... 8, 10

II

Cases—Continued Page

United States v. James, 510 F.2d 546,

cert. denied, 423 U.S. 855 0000.2... 7

United States v. Manarite, 448 F.2d 583,

cert. denied, 404 U.S. 947 00.0... 7

United States v. Oates, 560 F.2d 45 ........ 12

United States v. Oropeza, 564 F.2d 316,

cert. denied, 434 U.S. 1080 200000002... 8,11

United States v. Pardo-Bolland, 348 F.2d

316, cert. denied, 382 U.S. 944 000. 7

United States v. Richardson, 477 F.2d

1280, cert. denied, 414 U.S. 843 000. 6

United States v. Rogers, 549 F.2d 490,

cert. denied, 431 U.S. 918 -0000. 12

United States v. Satterfield, 572 F.2d

687, cert. denied, No. 77-6600 (Oct. 2,

OUI Ps cimcseescteseasertiererstincbsnabnasaslipkeime atte necks 10-11

United States v. Scholle, 553 F.2d 1109,

cert. denied, 434 U.S. 940 000. 6,12

United States v. Smith, 550 F.2d 277,

cert. denied, 434 U.S. 841-00. 6

United States v. White, 553 F.2d 310,

cert. denied, 4381 U.S. 972 0000000... 8

United States v. Williams, 435 F.2d 642,

cert. denied, 401 U.S. 995 00000000000. 6

United States v. Zamarripa, 544 F.2d 978,

cert. denied, 429 U.S. 1111 200002000... 6

Constitution, statutes and rules:

United States Constitution, Sixth Amend-

2

2

OO Or a 2

6 USX. NG) 2

Il

Constitution, statutes and

rules—Continued Page

Federal Rules of Evidence:

Rule 801 (d) (2) (A) .........----.-22-------+- 5

Rule 801(d) (2) (E)............--...----------- 5

Rule 804(b) (8) .............................. 7, 8,9, 10

Miscellaneous:

Advisory Committee Note to Rule 804,

Federal Rules of Evidence, 56 F.R.D.

S50 TIGR knocks 9

McCormick on Evidence (2d ed. 1972).... 12

4 Weinstein’s Evidence (1978) ............---- 8

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1609

BENJAMIN L. GOINS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 593 F.2d 88.

JURISDICTION

The judgment of the court of appeals was entered

on February 26, 1979, and a petition for rehearing

was denied on March 21, 1979. The petition for a

writ of certiorari was filed on April 20, 1979. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

QUESTION PRESENTED

Whether the admission into evidence of out-of-court

statements made by a declarant who was deceased at

the time of trial violated the Federal Ruies of Evi-

dence or petitioner’s constitutional right of confron-

tation.

STATEMENT

Following a jury trial in the United States District

Court for the Kastern District of Missouri, petitioner

was convicted of racketeering, in violation of 18

U.S.C. 1962(a) (Count One), testifying falsely be-

fore a grand jury, in violation of 18 U.S.C. 1623

(Count Two), soliciting false testimony before a

grand jury, in violation of 18 U.S.C. 1503 (Count

Three), and three counts of filing false income tax

returns, in violation of 26 U.S.C. 7206(1) (Counts

Four to Six). He was sentenced to consecutive prison

terms of five years on Count One, one year on Count

Two, and one year on Count Three, to be followed by

five years’ probation. On the other counts he was

sentenced to concurrent terms of one year’s imprison-

ment, which was suspended in favor of five years’

probation. He was also fined $3,000 on Count One

and $1,000 on each of the other five counts. The

court of appeals affirmed (Pet. App. A-1 to A-11).

1. The evidence, the sufficiency of which is not

disputed, is summarized in the opinion below (Pet.

App. A-2 to A-3). It showed that petitioner was the

License Collector for the City of St. Louis from 1968

until 1977. His duties included collecting cigarette

stamp tax and license fees for cigarette vending ma-

3

chines (Tr. 201, 1274, 1280).' Petitioner accepted

bribes from Raymond Scharf in return for permit-

ting Scharf to sell unstamped cigarettes in unlicensed

vending machines throughout St. Louis (Tr. 275-276,

279, 282-284, 405, 412-413, 437, 439, 453-454, 507).

Petitioner used part of the funds received from

Scharf to finance the concealed purchase of a cocktail

lounge operated by Joyce Harlston (Tr. 960-962, 291-

293; Gov. Exh. 8A). For the years 1973 to 1975

petitioner failed to pay income tax on any of the

bribery income or on the income received from the

cocktail lounge.

Thereafter, petitioner testified falsely before a

federal grand jury that was investigating these mat-

ters. Petitioner also encouraged Harlston to give

false and misleading testimony before the grand jury,

advising her in the presence of her daughter to con-

ceal his interest in the cocktail lounge and to claim

that the money used to open the cocktail lounge had

been left to her by a deceased relative (Tr. 969-970).

2. Veronica Harlston Raiford (Harlston’s daugh-

ter), Samuel Davis (an employee at Harlston’s cock-

tail lounge) and Gregory Hawkins (a police officer

and Harlston’s friend) were among the more than 50

government witnesses at petitioner’s trial.

Raiford testified about the advice that she heard

petitioner give her mother prior to the grand jury

appearance. Raiford also said that her mother had

told her that she had testified falsely before the grand

“Tr” refers to the trial transcript; “H. Tr.” refers to the

hearing on petitioner’s motion to suppress.

4

jury about the source of the financing for the lounge

and had concealed petitioner’s interest in the lounye

(Tr. 970). Davis testified that in the summer of

1975, after the Internal Revenue Service had begun

to audit the books of the cocktail lounge, Harlston

told petitioner in Davis’s presence that she needed a

receipt of some sort for the $16,000-$17,000 that she

had paid petitioner. Davis also stated that Harlston

had mentioned the same subject to him before the

meeting with petitioner (‘T'r. 906, 908-909), Hawkins

testified that in the summer of 1976, after the IRS

had subpoenaed records pertaining to the operation

of the lounge, Harlston admitted to him that she had

lied before the grand jury at petitioner’s behest (‘T'r.

1046-1047) .°

The government also introduced taped conversa-

tions recorded with the consent of Harlston, who

began to cooperate in the government’s investigation

in September 1976. In these recorded conversations

petitioner admitted his receipt of money from Scharf,

his investment in the cocktail lounge and efforts to

conceal his interest, and his own perjury before the

grand jury) (H. Tr. 21-30; Tr. 1058-1070; Gov.

Iixhs. 41-45). Harlston was to have been a povern-

ment witness at petitioner’s trial, but she died less

than three weeks before the trial began.

ne

* Petitioner did not object to this testimony during Hawk-

ins’ direct examination (Tr. 1042-1047),

6

ARGUMENT

Petitioner’s sole contention is that the introduction

of the out-of-court statements made by Harlston to

her daughter, to Davis, and to Hawkins violated both

the Federal Rules of Evidence and his Sixth Amend-

ment right of confrontation.

We note at the outset that, even if these statements

were improperly admitted at trial, the error was

harmless beyond a reasonable doubt. As noted above,

Davis testified that, after Harlston had told him

about the tax problem occasioned by the payments to

petitioner, he met with both Harlston and petitioner

to discuss the matter. The incriminating statements

made by petitioner at this meeting were plainly ad-

missible (see led. R. Evid. 801 (d)(2)(A)), and the

prior conversation between Harlston and Davis on

the same subject was thus merely cumulative. Simi-

larly, Harlston’s statements to her daughter and

Hawkins that she had lied before the grand jury did

not add substantially to petitioner’s admissions in the

tape recorded conversations or to the daughter’s other

testimony that she had overheard petitioner advise

her mother to conceal his interest in the lounge.

In any event, Harlston’s statements were properly

admitted in the circumstances of this case.

la. Harlston’s statement to Davis regarding the

payments to petitioner that had been concealed from

the IRS was made during the course and in further-

ance of a conspiracy to defraud the United States of

income taxes. It was thus admissible under Fed. R.

Evid. 801(d)(2)(E). Anderson v. United States,

6

417 U.S. 211, 218 (1974). Harlston made it clear

to Davis that she did not want to reveal petitioner as

the recipient of the funds (Tr. 905-909). Davis testi-

fied that he suggested having someone else simply

declare the income and pay the taxes, but this solu-

tion was rejected (Tr. 910-911). Instead, petitioner,

Harlston and Davis decided to obtain a receipt from

Scharf showing that the money given to petitioner

had been turned over to Scharf as repayment of a

loan (Tr. 911). This evidence plainly supports the

court of appeals’ conclusion (Pet. App. A-6) that

Harlston’s statement to Davis was part of a con-

spiracy directed at obtaining his help in continuing

the concealment from the IRS of petitioner’s financial

involvement in the cocktail lounge. See United Slates

v. Scholle, 553 F.2d 1109, 1117-1118 (8th Cir.), cert.

denied, 434 U.S. 940 (1977); United Slates v. Smith,

550 F.2d 277, 281-282 (5th Cir.), cert. denied, 434

U.S. 841 (1977); United States v. Zamarripa, 544

F.2d 978, 981-982 (8th Cir. 1976), cert. denied, 429

U.S. 1111 (1977); United States v. Richardson, 477

I’.2d 1280, 1282-1283 (8th Cir.), cert. denied, 414

U.S. 843 (1973); United States v. Williams, 435 F.2d

642, 645 (9th Cir. 1970), cert. denied, 401 U.S. 995

(1971)." .

"Narratives of past events offered as an integral part of

the planning of future strategy in furtherance of a conspiracy

fall within the co-conspirator exception to the hearsay rule.

“A statement of one conspirator to another during the active

course of a conspiracy, giving the full setting of an upset,

with the purpose of getting reassurance or other help, does

not cease to be in furtherance of the conspiracy because it

7

b. Harlston’s remarks to her daughter and_ to

Hawkins concerning her grand jury perjury were

properly admitted as declarations against penal in-

terest. Fed. R. Evid. 804(b) (2). Although petitioner

emphasizes Harlston’s eventual cooperation with the

government and the favorable resolution of her po-

tential criminal liability, he cites no evidence that she

was even attempting to bargain with the government

at the time she made the declarations in question.

Harlston’s statement to her daughter was made im-

mediately after her grand jury appearance, and the

similar admission to Hawkins occurred when she was

seeking his advice about how to respond to an IRS

subpoena. It was not until after Hawkins advised

her to go to the authorities and tell the truth that

Harlston approached the government and agreed to

cooperate,

Harlston’s obvious exposure to criminal charges at

the time she made the statements, and her choice of a

close friend and a relative as confidants, both indi-

cate the trustworthiness of the declarations. As the

court of appeals concluded (Pet. App. A-4 to A-5),

the test of admissibility of such statements—whether

the statement is so contrary to the declarant’s interest

contains a natural and pertinent reference to a past fact.”

United States v. Pardo-Bolland, 348 F.2d 316, 324-325 (2d

Cir.), cert. denied, 382 U.S. 944 (1965). See United States

v. Haldeman, 559 F.2d 31, 110-111 (D.C. Cir. 1976) (en

banc), cert. denied, 431 U.S. 988 (1977); United States v.

James, 510 F.2d 546, 549-550 (5th Cir.), cert. denied, 423

U.S. 855 (1975); United States v. Manarite, 448 F.2d 583,

590-591 (2d Cir.), cert. denied, 404 U.S. 947 (1971).

8

in avoiding criminal liability that a reasonable person

in declarant’s position would not have made the state-

ment unless he believed it to be true—was satisfied

here. See United States v. Hoyos, 573 F.2d 1111,

1115 (9th Cir. 1978); United States v, Oropeza, 564

I'.2d 316, 324-325 (9th Clr. 1977), cert. denied, 434

U.S. 1080 (1978); Uniled States v. Bagley, 587 F.2d

162, 165-167 (5th Cir. 1976), cert. denied, 429 U.S.

1075 (1977).*

Petitioner argues that the use of statements against

penal interest inculpating the accused has been criti-

cized by commentators, notably Judge Weinstein, as

being inherently untrustworthy. 4 Weinstein’s Hvi-

dence § 804(b) (3) [03], at 804-93 to 804-95 (1978).

Nevertheless, Rule 804(b) (3) unquestionably allows

the use of such statements. See United Slates v. Bar-

rett, 539 F.2d 244, 250 (1st Cir. 1976). The Ad-

visory Committee Notes explain that declarations that

implicate the accused may be included in the category

of statements against interest, so long as they qualify

as actually against the declarant’s interest:

4A second requirement, that corroborating circumstances

clearly indicate the trustworthiness of the statement, applies

only to declarations exculpating the accused. Fed. R. Evid.

804(b) (3). See United States v. White, 553 F.2d 310, 313 &

n.8 (2d Cir.), cert. denied, 431 U.S. 972 (1977). But see

United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).

In any event, as we have noted, Harlston’s statements were

amply corroborated. Raiford was present when petitioner

told Harlston what to say to the grand jury (Tr. 969-970),

and the jury also heard tape recordings of petitioner’s admis-

sions of his efforts to frustrate the government’s investiga-

tions (H. Tr. 21-30; Tr. 1058-1070; Gov. Exhs. 41-45).

9

Whether a statement is in fact against interest

must be determined from the circumstances of

each case. Thus a statement admitting guilt and

implicating another person, made while in cus-

tody, may well be motivated by a desire to curry

favor with the authorities and hence fail to

qualify as against interest. On the other hand,

the same words spoken under different cireum-

stances, e.g., to an acquaintance, would have no

difficulty in qualifying.

56 F.R.D. 183, 828 (1973). In the present case, as

discussed above, the circumstances surrounding Harl-

ston’s statements make it quite unlikely that her

remarks were actually self-serving and therefore

untrustworthy.

Each of the decisions cited by petitioner merely

illustrates that the admissibility of a declaration under

Rule 804(b) (8) depends upon a case-by-case analysis

of a number of factors." In United States v. Bailey,

581 F.2d 341, 345 (3d Cir. 1978), the court refused

to admit a statement implicating both the defendant

and the deciarant because the confession had been

given while the declarant was in police custody and

after he had been offered a plea bargain. Similarly,

the statements held inadmissible in United States v.

Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977), had

been made after the declarant had been convicted,

* Petitioner characterizes these cases as supporting his con-

stitutional claim (Pet. 12). In fact, however, the decisions in

all three cases cited (Pet. 12-13) rested on evidentiary

grounds alone.

10

given immunity, and pressured to testify by both

the prosecutor and the grand jury. The court con-

cluded that in these circumstances the giving of the

testimony was in the best interest of the witness,

rather than against it. See also United States v.

Alvarez, 584 F.2d 694, 701 (5th Cir. 1978). Here,

by contrast, Harlston’s statements were made to her

daughter and a friend, not to government. officials.

She was not in police custody at the time, nor is there

any indication in the record that she was attempting

to strike a bargain with the government when she

made her admissions. Harlston was still very much

subject. to criminal liability; her later decision to

cooperate cannot serve to change her earlier state of

mind.

Finally, contrary to petitioner’s contentions (Pet.

13), United States v. Brandenfels, 522 F.2d 1259

(9th Cir), cert. denied, 423 U.S. 1083 (1975), does

not confliet with the instant ease. Although in Bran-

denfels the Ninth Cireuit’ reiterated its refusal to

recognize the rule allowing admission of declarations

against penal interest (522 F.2d at 1263), the court

subsequently abandoned that position in light of the

Federal Rules of Kvidence and now leaves the de-

termination of admissibility under Rule 804(b) (3)

to the diseretion of the trial court, subject to applica-

tion of the proper test. United States vy. Hoyos,

supra, 573 F.2d at 1115; United States vy, Satterfield,

572 F.2d 687, 690 (9th Cir.), cert. denied, No. 77-

11

6600 (Oct. 2, 1978); United States v. Oropeza, supra,

D64 F.2d at 325."

In sum, petitioner does not dispute that. the Federal

Rules of Evidence allow the introduction of hearsay

statements made in furtherance of a conspiracy or

against penal interest. Although he asserts that

Harlston’s statements did not satisfy these exceptions

for a number of reasons, the district court and the

court of appeals rejected his claims. These essentially

fact-bound determinations do not warrant further

review,

2. Petitioner argues that the admission of Harl-

ston’s hearsay statements, even if consistent with the

Federal Rules of Evidence, violated his Sixth Amend-

ment right of confrontation.’ Specifically, he claims

"Moreover, Brandenfels was a case in which the sstate-

ment—exculpating the accused——was not ayainst the declar-

ant’s interest and was otherwise unreliable. 522 F.2d at 1264.

™The Confrontation Clause has never been construed to

create an absolute bar to the admission of hearsay testimony

by an unavailable declarant. See Chambers v. Mississippi,

410 U.S. 284, 295 (1973). As the Court noted in Dutton v.

Evans, 400 U.S, 74, 89 (1970), “the mission of the Confronta-

tion Clause is to advance a practical concern for the accuracy

of the truth-determining process in criminal trials * * *.”

Hence, hearsay testimony is frequently introduced in the

form of, ¢.g., co-conspirator declarations, former testimony,

dying declarations, and statements against interest, and al-

though the defendant may be deprived of the opportunity

literally to “confront” his accuser at trial, the constitutional-

ity of admitting such evidence pursuant to recognized ex-

ceptions to the hearsay rule has repeatedly been upheld. See,

e.g., Mattox v. United States, 156 U.S. 287, 248 (1895) ; Kirby

Vv. United States, 174 U.S. 47, 61 (1899); Pointer v. Texas,

380 U.S. 400, 407 (1965) ; California v. Green, 399 U.S. 149,

12

(Pet, 9-12) that the court of appeals erroneously re-

lied on its previous decision in) United States vy,

Scholle, supra, in its determination of the constitu-

tional issue but that Scholle involved statements of a

co-conspirator, not statements against penal interest

inculpating the accused,

Petitioner’s assertions are not supported by the

record, The court of appeals relied on Seholle for its

statement of the appropriate test to apply in assess-

ing the constitutionality under the Confrontation

Clause of any exception to the hearsay rule involving

the out-of-court statement of an unavailable declarant

(Pet. App. A-6 to A-7). That test, drawn from

Dutton vy. Hvansa, 400 U.S, 74 (1970), consists of an

analysis of the circumstances surrounding the giving

of the statement, with a focus on various factors that

could affect. the integrity of the faet-finding process,

e.g., Whether the statement bears sufficient indicia of

reliability, whether the evidence was crucial to the

government's case, whether the jury had an adequate

opportunity to weigh the credibility of the statement,

and whether the trial court gave appropriate instrue-

tions. Pet. App. A-7, quoting United States v, Scholle,

supra, 553 F.2d at 1119-1120. See also United States

v, Oates, 560 F.2d 45, 81-83 (2d Cir, 1977); United

States vy. Rogers, 549 F.2d 490, 500-502 (8th Cir

1976), cert. denied, 431 U.S. 918 (1977); United

States v. Barter, 492 F.2d 150, 177 (9th Cir, 1973),

cert, denied, 416 U.S, 940 (1974).

165-168 (1970). See generally MeCormick on Evidence § 262,

at 606-607 (2d ed, 1972).

13

Applying this test, the court of appeals correctly

found that the statements admitted here did not. vio-

late petitioner’s Sixth Amendment right (Pet. App.

A-7 to A-8). Harlston made all of the statements

spontaneously to a close friend and a relative in whom

she would be expected to confide and to whom she

had no apparent reason to lie, See Green v, Georgia,

No, 78-5944 (May 29, 1979). The statements could

not have been based on faulty recollection or pereep-

tion, Moreover, as the court below noted (Pet. App.

A-8), the statements were amply corroborated by

other evidence af trial and were not erucial to the

case against petitioner. Scharf'’s testimony estab-

lished the payment of the bribes, as well as peti-

tioner’s investment of those funds in’ the coektail

lounge, and this testimony was strongly confirmed

by a number of witnesses and documents, Petition-

er’s own tape-recorded admissions also proved his

concealed interest in the tavern, his false statements

to the grand jury, and his encouragement of Harl-

aton’s perjury. In sum “fo]verwhelming evidence”

(Pet. App. A-2) was offered at trial that petitioner

accepted bribes from Scharf and used the money to

purchase the lounge operated by Harlston. The jury

thus had a substantial basis for assessing the eredi-

bility of Harlston’s statements,

i?

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WaAbDE H. McCrer, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

SIDNEY M. GLAZER

KATHLEEN A. FELTON

Attorneys

JUNE 1979

TW ov. &. CoveenMenT Peintine Orrick, 1970 2en213 1o